Lyndon McLellan is one of the thousands Americans whose property was seized through civil forfeiture, which allows law enforcement to seize cash and property without ever charging anyone with any crime.

The Institute for Justice's Initiative to End Policing for Profit

Civil Forfeiture

Civil forfeiture laws allow the government to take cash, cars, homes and other property suspected of being involved in criminal activity. Unlike criminal forfeiture, with civil forfeiture, the property owner doesn’t have to be charged with, let alone convicted of, a crime to permanently lose his property.

Poll

Americans Overwhelmingly Oppose Civil Forfeiture

As you may or may not know, “civil forfeiture” allows law enforcement officials to seize cash, cars, or other property if they suspect it is involved in a crime, even if the property owner has not been convicted or charged with a crime. Given this, to what extent do you support or oppose “civil forfeiture?”

8% - Strongly support

17% - Somewhat support

23% - Somewhat oppose

36% - Strongly oppose

15% - No opinion

Federal law allows law enforcement agencies to keep 100 percent of proceeds from property that has been forfeited. To what extent do you support or oppose allowing law enforcement agencies to use forfeited property or its proceeds for their own use?

7% - Strongly support

16% - Somewhat support

19% - Somewhat oppose

44% - Strongly oppose

15% - Don't Know/No opinion

States like Minnesota and others have recently passed laws limiting the use of civil forfeiture, but legislators left in place a provision allowing local law enforcement to work with federal officials to bypass the tougher state law. Once federal prosecutors forfeit the property, they give 80 percent back to the local officials. Do you agree that state law enforcement officials should be allowed to participate in and benefit from forfeitures that are not permitted under state law?

7% - Strongly agree

23% - Somewhat agree

28% - Somewhat disagree

41% - Strongly disagree

#EndForfeiture

You can lose your cash, car, or even your home, even if you’ve never been charged with a crime. #EndForfeiture

87 percent

87 percent of federal forfeitures were civil, not criminal, so the government didn’t have to charge or convict anyone to take property.

What is Civil Forfeiture?

Civil forfeiture—a process by which the government can take and sell your property without ever convicting, or even charging, you with a crime—is one of the greatest threats to property rights in the nation today.

Civil forfeiture cases proceed under the legal fiction that cash, cars or homes can be “guilty”—leading to such bizarre case names as United States v. 434 Main Street, Tewksbury, Mass. But because these cases are technically civil actions, property owners receive few, if any, of the protections that criminal defendants enjoy. To make matters worse, when law enforcement agencies take and sell your property, they frequently get to keep all the proceeds for their own use. This gives agencies a direct financial incentive to “police for profit” by seizing and forfeiting as much property as possible.

It’s time to end civil forfeiture. No one should lose his or her property to law enforcement without being convicted of a crime, and the police shouldn’t profit from taking property.

Updates

"State-Sanctioned Theft."

Civil forfeiture treats property owners worse than criminals. Under civil forfeiture, the presumption of innocence is turned on its head, there is no right to an attorney, and it can take years to get your day in court.

Initiative Cases

Carter works for the Pennsylvania news outlet LNP Media Group, and has teamed with the Institute for Justice to make forfeiture records in Lancaster County and the neighboring Berks County available to the public.

Indiana man requested that the Supreme Court of the United States review his civil forfeiture case after the Indiana state supreme court held that Eighth Amendment’s Excessive Fines Clause does not apply in Indiana.

Rustem was born and raised in Albania and served for 30 years in the Albanian national police force, while Lejla worked as a high school science teacher. In 2005, the family left Albania and settled in Cleveland, Ohio and became American citizens in 2010. Rustem was headed back to Albania, but at Cleveland Hopkins International Airport, Customs agents seized $58,100 the family had saved.

Anthonia, a U.S. citizen, was traveling with over $40,000 on a trip to her home country of Nigeria, carrying money she had saved to start a medical clinic for women and children. But at Houston’s George Bush Intercontinental Airport, Customs agents seized it all.

In early 2016, the San Diego County District Attorney seized over $100,000 in personal bank accounts belonging to James Slatic, his wife Annette, and their two teenage daughters, Lily and Penny, without charging anyone with a crime.

The Platts, who live in Washington State, had their car seized after police pulled over their son—who does not own the car—for a window tint violation in Arizona. One month after IJ got involved, Navajo County prosecutors will return the Platts’ unlawfully seized car.

The IRS seized more than $68,000 from Vocatura’s Bakery because they claimed the owners violated so-called “structuring” laws by depositing cash in the bakery’s bank account in amounts less than $10,000.

While Eh Wah was driving through Oklahoma, the Muskogee County Sheriff’s Department seized more than $53,000 from his car, which included donations to a Thai Orphanage. Six hours after IJ got involved, the county agreed to return the seized cash.

In June 2014, the government seized his entire bank account—more than $150,000. This was money that Ken worked for years to earn, and that he was counting on for his retirement. Thankfully, after IJ filed a petition on his behalf, the IRS agreed to return his entire life savings.

In 2015, the New Mexico legislature voted unanimously to abolish civil forfeiture. But cities across the state are refusing to follow the law. Now Torraco and Ivey-Soto want to compel Albuquerque to end its illegal use of civil forfeiture once and for all.

The Horners fought against civil forfeiture for more than nine months to get their two cars back. They won, and now they are suing to ensure that no one else will ever have to go through the same ordeal.

Charles Clarke is a 24-year-old college student, who spent over 5 years to save up $11,000—only to have it seized by law enforcement officials before he was scheduled to board a flight at the Cincinnati/Northern Kentucky airport.

Philadelphia’s forfeiture machine stacks the deck against property owners and leads city officials to police for profit instead of justice. To end these unconscionable and unconstitutional practices, the Institute for Justice and a group of property owners have brought a major, class-action lawsuit in federal court.

Russ Caswell and his family have owned and operated the Motel Caswell in Tewksbury, Mass., for two generations. But by using civil forfeiture, the U.S. Department of Justice and the Tewksbury Police Department teamed up to try to forfeit and cash in on the Motel Caswell.

The government shouldn’t use civil forfeiture to take money from people who’ve done nothing wrong. But the IRS seized the Dehko family’s grocery store’s bank account and they had to fight for a year to get it back.

Policing for Profit

In 43 states, law enforcement gets to keep some or all of the cash, cars, homes or other property that they seize.

Report: Policing for Profit

Civil forfeiture laws pose some of the greatest threats to property rights in the nation today, too often making it easy and lucrative for law enforcement to take and keep property—regardless of the owner’s guilt or innocence. This updated and expanded second edition of Policing for Profit: The Abuse of Civil Asset Forfeiture makes the case for reform, grading the civil forfeiture laws of each state and the federal government, documenting remarkable growth in forfeiture activity across the country, and highlighting a worrisome lack of transparency surrounding forfeiture activity and expenditures from forfeiture funds.

Forfeiture Research

This study—the most extensive and sophisticated of its kind—combines more than a decade’s worth of data from the nation’s largest forfeiture program, the Department of Justice’s equitable sharing program, with local crime, drug use and economic data from a variety of federal sources. Results are clear: Forfeiture has no meaningful effect on crime fighting, but forfeiture activity does increase when local economies suffer.

In 2017, the Department of Justice revived a controversial federal forfeiture program the previous administration had sharply curtailed. Using the DOJ’s own data, this paper finds that the DOJ cannot substantiate its claim that civil forfeiture fights crime. It also concludes that the DOJ’s new safeguards are unlikely to provide meaningful protection to innocent property owners.

Thanks to federal civil forfeiture laws, the Internal Revenue Service has seized millions of dollars from thousands of Americans’ bank accounts without proof of criminal wrongdoing. The IRS claimed the funds were illegally “structured”—deposited or withdrawn in small amounts to evade federal reporting requirements imposed on banks—and simply took the money.

Critics of civil forfeiture have long argued that allowing law enforcement to take property and pocket the proceeds creates incentives to put profits ahead of justice. This report shows that the incentives in civil forfeiture laws do change behavior, and not in a good way: Civil forfeiture creates a strong temptation for law enforcement to seize property to pad their own budgets.

Federal laws encourage local law enforcement to skirt state property rights protections to cash in on seized property.

10 percent

According to one prosecutor, in his jurisdiction only 10 percent of civil forfeiture cases involving vehicles ever make it before a judge.

What is the difference between Civil and Criminal Forfeiture?

Civil Forfeiture

Civil forfeiture cases are in rem proceedings—meaning that they are technically brought against the property itself rather than its owner. This legal fiction means that police and prosecutors can take and sell your cash, cars, homes or other property without having to convict you or even charge you with any wrongdoing. Fighting back means having to pay for a lawyer yourself or go it alone. And instead of the government having to prove your guilt, under civil forfeiture you must prove your innocence. It is an upside-down world that where the government holds all the cards and has the financial incentive to play them to the hilt.

VS.

Criminal Forfeiture

Criminal forfeiture is when the government takes one’s property following a criminal conviction. Criminal forfeiture cases proceed against the person whose property the government is trying to take. This means that the accused is afforded all of his or her rights under the U.S. Constitution, including the right to have an attorney provided if he or she cannot afford one. At the same time, the government must prove beyond a reasonable doubt that the person whose property they are trying to take is guilty of the underlying offense.

Legislative Efforts

Federal Reform

Current federal forfeiture laws create financial incentives for law enforcement to pursue profit over the fair administration of justice, facilitate the circumvention of state laws intended to protect citizens from abuse, encourage the violation of due process and property rights of Americans, and disproportionally impact people of color and those of modest means.

The FAIR Act would enact the following changes to federal civil forfeiture:

Bans the U.S. Department of Justice from retaining forfeiture proceeds and instead re-directs forfeiture proceeds to the General Fund of the Treasury. In 1986, the DOJ’s Assets Forfeiture Fund took in $93.7 million in forfeiture revenue. By 2014, annual deposits topped $4.5 billion, but by 2018, annual deposits had topped $1.3 billion;

Abolishes the “equitable sharing” program, which allows local and state law enforcement to collaborate with federal agencies and pursue forfeitures under lucrative federal law, even if that would circumvent state restrictions. From 2000 to 2013, the DOJ distributed more than $4.7 billion in equitable-sharing money;

Shifts the burden of proof from the property owner onto the government, restoring the principle of “innocent until proven guilty”;

Raises the standard of proof in civil forfeiture proceedings from “preponderance of the evidence” (i.e. more likely than not) to “clear and convincing”;

Provides legal representation for those who cannot afford it in civil forfeiture proceedings;

Limits forfeiture for currency “structuring” only when funds in question are derived from an illegal source or used to conceal illegal activity, codifying a recent IRS policy change in response to documented abuses; and

Allows individuals and small business owners to request a prompt hearing to contest the seizure of their funds for alleged structuring violations.

A coalition of organizations, including the Institute for Justice, support civil forfeiture reform that will effectively address defects in current law and procedures that have becoming serious threats to the rights of property owners.

Model Legislation

Needed Reforms

Profit Incentive

Because law enforcement agencies often get to keep and use all the civil forfeiture proceeds they take in, agencies have an incentive to seize and forfeit as much property as possible. But police and prosecutors should be pursuing justice, not profits. Both the state and federal governments should amend their civil forfeiture statutes to require that all civil forfeiture proceeds be deposited either into the state’s general treasury or into an account dedicated to education or compensating crime victims.

Burden of Proof

One of the most frightening aspects of civil forfeiture is that it allows police and prosecutors to take and keep people’s property without ever convicting them of—or even charging them with—a crime. And to keep their property, owners in many states have to prove a negative—namely, that the property was not connected to a crime. This harsh procedural rule causes many innocent owners to give up not because they did anything wrong, but because proving their innocence is too hard. Both the states and federal government should follow the example of Minnesota, which amended its law to require a criminal conviction or its equivalent before the government could forfeit one’s property.

Equitable Sharing

Some states have enacted civil forfeiture reforms that, for instance, block law enforcement agencies from keeping forfeited property for their own use. But by using a tool called “equitable sharing,” police and prosecutors circumvent those reforms by handing over forfeiture cases to the federal government, which in turn lets police and prosecutors keep up to 80 percent of whatever it forfeits. To prevent these end runs, and to ensure that the federal government respects the states’ wishes, federal law should require the government to distribute equitable sharing proceeds in the same manner as required by state law.

Today, 15 states require a criminal conviction to forfeit property, while three states have abolished the practice outright. Since 2014, 33 states and Washington, D.C. have enacted reforms.

State Reform Efforts

Reform Passed Reform Pending

Bill Number:

Status:

Summary

Cash Over Drugs

A former New York City police commissioner explained that police often set up roadblocks on the southbound lanes of I-95, which carry the cash used to make drug buys, rather than the northbound lanes, which carry the drugs, because “seized cash will end up forfeited to the police department, while seized drugs can only be destroyed.”

About the Institute for Justice

Founded in 1991, the Institute for Justice is what a civil liberties law firm should be. As the national law firm for liberty, we stick to a clear mission engaging in cutting-edge litigation and advocacy both in the courts of law and in the court of public opinion on behalf of individuals whose most basic rights are denied by the government. Our four pillars of litigation are private property, economic liberty, free speech and school choice. Simply put, we seek a rule of law under which individuals can control their destinies as free and responsible members of society.

The Institute for Justice is a 501(c)(3) organization; donations are tax-deductible.